Anderson v. Harless, 459 U.S. 4 (1982)

Per curiam opinion.

PER CURIAM.

Respondent was convicted of two counts of first-degree murder and was sentenced to life imprisonment. The Michigan Court of Appeals affirmed respondent’s conviction, Peoplev. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977), and the Michigan Supreme Court, on review of the record, denied respondent’s request for relief. App. to Pet. for Cert. 30a.

Respondent then filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of Michigan. He alleged, inter alia, that the trial court’s instruction on "malice" -- a crucial element in distinguishing between second-degree murder and manslaughter under Michigan law -- was unconstitutional.{1} In particular, respondent focused on the following language from the trial court’s lengthy charge:

Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied [sic] by the use of a gun against another.

App. to Pet. for Cert. 59a.

Relying primarily on Sandstrom v. Montana, 442 U.S. 510 (1979), the District Court held that this instruction unconstitutionally shifted the burden of proof to respondent and was inconsistent with the presumption of innocence. 504 F.Supp. 1135 (1981). The court also held that respondent had exhausted available state court remedies, as required by 28 U.S.C. §§ 2254 (b) and (c), since his conviction had been reviewed by both the Michigan Court of Appeals and the Michigan Supreme Court. The District Court ordered that the application for writ of habeas corpus be granted unless respondent was retried within 90 days.

The United States Court of Appeals for the Sixth Circuit affirmed. 664 F.2d 610 (1982). The court held that respondent’s claim had been properly exhausted in the state courts, because respondent had presented to the Michigan Court of Appeals the facts on which he based his federal claim and had argued that the malice instruction was "reversible error." See People v. Harless, supra, at 748, 261 N.W.2d at 43. The court also emphasized that respondent, in his brief to the Michigan Court of Appeals, had cited People v. Martin, 392 Mich. 553, 221 N.W.2d 336 (1974) -- a decision predicated solely on state law in which no federal issues were decided, but in which the defendant had argued broadly that failure to properly instruct a jury violates the Sixth and Fourteenth Amendments. In the view of the United States Court of Appeals, respondent’s assertion before the Michigan Court of Appeals that the trial court’s malice instruction was erroneous, coupled with his citation of People v. Martin, supra, provided the Michigan courts with sufficient opportunity to consider the issue encompassed by respondent’s subsequent federal habeas petition.

We reverse. In Picard v. Connor, 404 U.S. 270 (1971), we made clear that 28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with a "fair opportunity" to apply controlling legal principles to the facts bearing upon his constitutional claim. Id. at 276-277. It is not enough that all the facts necessary to support the federal claim were before the state courts, id. at 277, or that a somewhat similar state law claim was made. See, e.g., Gayle v. LeFevre, 613 F.2d 21 (CA2 1980); Paullet v. Howard, 634 F.2d 117, 119-120 (CA3 1980); Wilks v. Israel, 627 F.2d 32, 37-38 (CA7), cert. denied, 449 U.S. 1086 (1980); Conner v. Auger, 595 F.2d 407, 413 (CA8), cert. denied, 444 U.S. 851 (1979). In addition, the habeas petitioner must have "fairly presented" to the state courts the "substance" of his federal habeas corpus claim. Picard, supra, at 275, 277-278. Cf. Rose v. Lundy, 455 U.S. 509, 518 (1982).

In this case, respondent argued on appeal that the trial court’s instruction on the element of malice was "erroneous." He offered no support for this conclusion other than a citation to, and three excerpts from, People v. Martin, supra -- a case which held that, under Michigan law, malice should not be implied from the fact that a weapon is used. See App. to Pet. for Cert. 47a-49a, 51a-53a.{2} Not surprisingly, the Michigan Court of Appeals interpreted respondent’s claim as being predicated on the state law rule of Martin, and analyzed it accordingly. 78 Mich.App. at 748-750, 261 N.W.2d at 43.

The United States Court of Appeals concluded that "the due process ramifications" of respondent’s argument to the Michigan court "were self-evident," and that respondent’s

reliance on Martin was sufficient to present the state courts with the substance of his due process challenge to the malice instruction for habeas exhaustion purposes.

664 F.2d at 612. We disagree. The District Court based its grant of habeas relief in this case on the doctrine that certain sorts of "mandatory presumptions" may undermine the prosecution’s burden to prove guilt beyond a reasonable doubt, and thus deprive a criminal defendant of due process. See Sandstrom, supra; In re Winship, 397 U.S. 358 (1970). The Court of Appeals affirmed on the same rationale. However, it is plain from the record that this constitutional argument was never presented to, or considered by, the Michigan courts. Nor is this claim even the same as the constitutional claim advanced in Martin -- the defendant there asserted a broad federal due process right to jury instructions that "properly explain" state law, 392 Mich. at 558, 221 N.W.2d at 339, and did not rely on the more particular analysis developed in cases such as Sandstrom, supra.{3}

Since it appears that respondent is still free to present his Sandstrom claim to the Michigan Court of Appeals, see People v. Berry, 10 Mich.App. 469, 474-475, 157 N.W.2d 310, 312-313 (1968), we conclude that he has not exhausted his available state court remedies, as required by 28 U.S.C. § 2254. Accordingly, the petition for certiorari and respondent’s motion for leave to proceed in forma pauperis are granted, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Per curiam opinion. (Footnotes)

1. Respondent was convicted of.first-degree murder, which requires proof not only of "malice" but also of premeditation. For this reason, petitioner argues that any error in the trial court’s definition of malice was harmless. In light of our disposition, we do not reach the issue.

2. Respondent was represented by counsel on appeal.

3. We doubt that a defendant’s citation to a state court decision predicated solely on state law ordinarily will be sufficient to fairly apprise a reviewing court of a potential federal claim merely because the defendant in the cited case advanced a federal claim. However, it is clear that such a citation is insufficient when, as here, the federal claim asserted in the cited case is not even the same as the federal claim on which federal habeas relief is sought. See Picard v. Connor, 404 U.S. 270, 276 (1971).